NEGLIGENCE

IZMI IZDIHARUDDIN B CHE JAMALUDIN

• Breach of care

• Damage
 CONCEPT
Definition
• Halsbury's Laws of Malaysia: negligence, a specific tort, creates an independent cause of action where a party fails to
exercise the amount of care which the law demands in instances where a duty of care exists, a breach of which causes
damage to another….
• Sukatno v Lee Seng Kee [2009] 3 MLJ 306, CA: the tort of negligence involves a duty of care, a breach of that duty and
damage caused to the claimant by that breach…Negligence is the failure to exercise care which the circumstances
demand and what amounts to negligence would depend on the facts of each particular case….
• Kek Kee Leng v Teresa Bong Nguk Chin [1978] 1 MLJ 61, FC: negligence ordinarily means a breach of a legal duty to
take care….
• Lok Kok Beng v Loh Chiak Eong & Anor [2015] 4 MLJ 734, FC : negligence is a tortious liability arises from a wrongful
act where the common law imposes a duty to take reasonable care….
Ingredients
• Right to claim negligence: based on Articles 5 (personal liberty), 8 (equality) and 13 (Right to property) of FC, Article
160 (2) of FC which recognizes the principles of common law of negligence & Civil Law Act 1956.
• Lochgelly Iron and Coal Co v M'Mullan [1934] AC 1, HL & Lim Kar Bee v Abdul Latif Bin Ismail [1978] 1 MLJ 109, FC:
three questions that must be answer: (a) duty of care, (b) breach of duty and (c) damage.
 DUTY OF CARE
General rule

• Duty to exercise care: there must be some form of recognizable legal relationship in tort that been expected in the ordinary life.

• Recognizable legal relationship: an obligation that can be established from (a), proximity, reasonable foreseeable or legal expectation between the
Plaintiff and Defendant and (b) it must be fair, just and reasonable to impose such liability.

• The first was (a) the proximity requirement, namely that the duty was limited to ‘persons so closely and directly affected’ by the defendant’s act that they
should be in his contemplation. Proximity may consist of various forms of closeness i.e. physical, circumstantial, casual or assumed. The second was the
test of (b) reasonable foresight. A duty would exist only where injury was reasonable foreseeable.

• Neighbour principle of M'Alister (or Donoghue) v Stevenson [1932] AC 562, HL: Facts of cases: Mrs. Donoghue and a friend visited a café in Scotland
where the friend ordered for her a bottle of ginger-beer. The proprietor of the café opened the ginger-beer bottle, which was of opaque glass so that it
was impossible to see the contents, and poured some of the ginger-beer into a tumbler. Mrs. Donoghue drank some of the ginger-beer. Then her friend
poured the remaining contents of the bottle into the tumbler and it is alleged that there is a decomposed snail came from the bottle. As a result, Mrs.
Donoghue alleged that she had contracted a serious illness. The ginger beer had been manufactured by David Stevenson, who ran a company producing
both ginger beer and lemonade. In this case, Mrs. Donoghue can’t sued for breach of contract against the café as her friend who ordered the beer or
Stevenson as she is not one who buy the beer from manufacturer. Therefore, she bring a civil action against Stevenson under Scots law alleged there are
duties by Stevenson to provide a system of working his business which would not allow snails to get into his ginger-beer bottles and an efficient system
of inspection of the bottles before the ginger-beer was filled into them. She lost her case before Scotland’s court on ground that no such duties existed
under the Scots law which resulting she filed an appeal before House of Lords. The House of Lords held in three to two votes that in Scots and English
law alike the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent the distributor or the
ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take
reasonable care that the article is free from defect likely to cause injury to health.
 DUTY OF CARE
Importance of neighbor principle in Donoghue v Stevenson:
• Prior to Donoghue v Stevenson, liability for personal injury in tort usually depended upon showing
physical injury inflicted directly or indirectly or upon some contractual relationship.
• Donoghue v Stevenson moved the common law for tort and delict from strict liability based upon direct
physical damage to the modern concept of negligence, which is fault-based and only requires injury as
Lord Atkin explain the Neighbor principle under the tort law:
The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is
no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.
But acts or omissions which any moral code would censure cannot in a practical world be treated so as to
give a right to every person injured by them to demand relief….The rule that you are to love your neighbor
becomes in law: You must not injure your neighbor; and the lawyer's question: Who is my neighbor?
receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbor? The answer
seems to be persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or omissions which
are called in question….
 DUTY OF CARE
Negligent misstatement
• In Donoghue v Stevenson, the duty of care lies on the negligent conduct and direct consequences which caused by damage such as
medical bills or repair cost for damage on the vehicle (economic loss). However, it did not addressed the issue of negligent
misstatement or words which resulting a pure economic loss.
• A pure economic loss refers as a financial loss which does not accompanied with physical damage or damage on the property
damage, instead, the Plaintiff suffers the loss attributable through a web of economic relationships in which the Plaintiff is involved.
• The principle case is in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 3 WLR 101, HL, which the English law further expands
the duty of care to a pure economic loss. The facts of case are as follow:
Hedley Byrne were a firm of advertising agents and there is a customer, Easipower Ltd which placed orders for advertising. Hedley
doubts of the financial position of Easipower due to Easipower’s parent company was already in liquidation, wanted a bankers' report
concerning creditworthiness of Easipower. Hedley asked their own bank (National Provincial Bank Ltd) to request a report from Heller
& Partners for Easipower’s creditworthiness as Heller hold the Easipower’s bank’s account. Heller & Partners gave a letter which stated
“Confidential. For your private use and without responsibility on the part of the bank or its official.” The letter further advised
Easipower was financially sound. However, it appeared that Easipower went into liquidation. As a result of Hedley reliance on these
statements, they suffered various losses at around £17,000 and sued Heller & Partners. Heller argued that they did not know about the
contractual obligation between Easipower and Hedley as there is an absence of any direct dealings between them and disclaimer
excludes from the liability. The Court agreed and held that Heller cannot liable for Hedley’s loss. However the Court noted that there is
an existence of duty of care derived from negligence misstatement.
 DUTY OF CARE
• The excerpts from Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 3 WLR 101, HL are as follow:
A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on, would, I think,
have three courses open to him. He could keep silent or decline to give the information or advice sought: or he could
give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that
reflection or inquiry which a careful answer would require: or he could simply answer without any such qualification. If
he chooses to adopt the last course he must, I think, be held to have accepted some responsibility for his answer being
given carefully, or to have accepted a relationship with the inquirer which requires him to exercise such care as the
circumstances require……. there may be many situations in which one person voluntarily or gratuitously undertakes to
do something for another person and becomes under a duty to exercise reasonable care….. if someone possessed of a
special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies
upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of
words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably
rely upon his judgment or his skill or upon his ability to make careful inquiry a person takes it upon himself to give
information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or
should know, will place reliance upon it, then a duty of care will arise ..A man cannot be said voluntarily to be
undertaking a responsibility if at the very moment when he is said to be accepting it he declares that in fact he is not…
• The principle in Hedley Byrne & Co Ltd v Heller & Partners Ltd has a favor a wide and open-ended liability as long as
the Plaintiff relies on the Defendant’s information, the Defendant know or ought reasonably to know that the Plaintiff
relies on the Defendant’s statement and it is reasonable for Plaintiff to believe on the Defendant’s statement.
 DUTY OF CARE
• The principle in Hedley Byrne had been limited in Caparo Industries plc v Dickman [1990] 1 All ER 568, HL:
The Defendant is an auditor who prepare an auditors' report for a public limited company which showed that the company was
of sound financial standing. The Plaintiff in reliance on this report had made further purchases of shares so as to take over the
company. Later, the Plaintiff found that the company account were in an even worse state than had been revealed in the
annual and the company profits were not as high as projected. The Court held that the Defendant was not liable for a
negligence as the purpose of auditors' report under the Companies Act 1985 is to enable shareholders to exercise their class
rights in general meeting and did not extend to assist shareholders in the making of decisions as to future investment in the
company. Therefore, the liability for economic loss due to negligent misstatement was confined to cases where the statement
or advice had been given to a known recipient for a specific purpose of which the maker was aware.
• In Caparo Industries plc v Dickman [1990] 1 All ER 568, HL, the Court impose a further criteria for a duty of care to be
established which is the situation should be one in which the court considers it fair, just and reasonable that the law should
impose a duty of a given scope upon the one party for the benefit of the other as matter of public policy. In this case, there is
nothing in the statutory duties of a company's auditor to suggest that they were intended by Parliament to protect the
interests of investors in the market and I see no reason in policy or in principle why it should be either desirable or
appropriate that the ambit of the special relationship required to give rise to liability in cases such as the present should be
extended beyond those limits. In addition, there was no reason in policy or principle why auditors should be deemed to have
a special relationship with non-shareholders contemplating investment in the company in reliance on the published
accounts, even when the affairs of the company were known to be such as to render it susceptible to an attempted take-over.
 DUTY OF CARE
Application duty of care in Malaysia

• The principles in Donoghue v Stevenson, Hedley Byrne v Heller and Caparo Industries v Dickman were adopted in Malaysian cases.

• Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon [2006] 2 MLJ 389, FC: The Highland Towers consisted of three blocks of
apartment known as Blocks 1, 2 and 3 situated on Lots 494, 495 and 635 Mukim Hulu Klang. On 11 December 1993, a landslide occurred resulting
in the collapse of Block 1 and the subsequent evacuation of the respondents from Blocks 2 and 3. The Plaintiff then filed a suit in the Court
against various parties including the MPAJ, for negligence and nuisance due to failure to implement a proper drainage system. However, the
Court held that the MPAJ was not liable for pre and post collapse damage as matter of public policy. If the Court allows the Plaintiff’s claim, it
will certainly deplete whatever resources a local council has for the provision of basic services and infrastructure.

• KGV & Associates Sdn Bhd v The Co-Operative Central Bank Ltd [2006] 5 MLJ 513, CA: The Defendant prepared a valuation report and
addressed it to one Mr. Tan. Among others, the report makes the following points. First, that it was being prepared on the instructions of Tan
to advise on the present fair market value of the subject property for financing purpose. Second, it disclaims responsibility to a third party in
the absence of the Defendant's prior knowledge and consent. Tan took the report to the Plaintiff's office. He was accompanied by one Mr.
Kong. According to Tan, it was Kong who was the real borrower. Tan was merely assisting Kong as a friend but he did not inform the
Defendant that the report to be used by Kong. Later, the Plaintiff granted the loan and discovered that the land is below the market price that
proposed by the Defendant. However, the Plaintiff’s approval of loan was not based on valuation report as they rejected it as it was not
addressed to Kong. It was held the Defendant was not liable.
 DUTY OF CARE
Application duty of care in Malaysia

• Amal Bakti Sdn Bhd v Affin Merchant Bank [2012] 5 MLJ 61, CA: The Bank issued a prospectus on behalf of Energro and content of prospectus which stated the
company will be distributing Alfa Romeo vehicles in Malaysia & would be listed on Bursa Malaysia. The Plaintiff had invested in Energro in reliance of the bank’s
representation. Later, the scheme was failed & shareholder seek action against the Bank for negligent misstatement. It was held that the bank was liable as there is a
duty on part of the bank as it ought to have been aware the announcements and statements it authored would reach investors such as the shareholder and be relied
upon by them.

• Lok Kok Beng v Loh Chiak Eong [2015] 4 MLJ 734, FC: The Plaintiff had entered into their respective sale and purchase agreements to purchase units of industrial
buildings. The Defendant were the project architect appointed by the developer of the project. Later, the Plaintiff filed an action in negligence against the Defendant
for the financial loss they had suffered due to late delivery of vacant possession of their industrial units as it was the contended that the Defendant as the project
architect had acted negligently in the preparation of the original layout plan resulting in its amendment, in the supervision of the works and in the certification of
completed works, thereby causing a delay of eight years for the completion of the industrial buildings. The Court held that the Defendant were not liable as the delay
is caused by developer and not Defendant. Furthermore, it would be against public policy to impose on architects a duty to deliver vacant possession of buildings
within the developer’s contractual period. This would only serve to compromise or to impede their professional duty in ensuring that the building laws were observed
and that the structure of the building was safe.

• Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd [2018] 5 MLJ 561, FC: The Plaintiff’s factory used automated hydraulic presses and other electronically
controlled machinery to produce calcium silicate bricks. The Plaintiff sued Malaysian government & Tenaga Nasional for damages for negligently causing an electricity
supply failure/disruption which damaged its expensive factory machinery and wrecked its production schedules. The power failure/disruption was caused when
Malaysian govt contractor carrying out construction work on a highway ruptured an underground power cable when implanting a guard rail column. Tenaga Nasional
also did not inform Malaysian government about the presence and the location of the underground cable. However, Malaysia govt contractor proceeded with the
work without ascertaining of the location any cables. The Court held that both of them are breach of duty of care which Malaysian government was 40% liable and
Tenaga Nasional 60% liable from 2/3 Plaintiff’s losses and therefore the Court allowed the Plaintiff to claim for economic loss consequent to physical damage such as
costs as to replace and repair machines. However, the Plaintiff is not entitled to claim for a pure economy losses such as loss of profit or loss consequent to termination
of orders as it is too remote for the Plaintiff to claim such losses.
 DUTY OF CARE
Application duty of care

a) Duty not to cause physical injury to others

• Paul Elliot (Chelsea FC) v Dean Saunders & Liverpool FC [1994] Lexis Citation 3968: the Plaintiff and Defendants were playing on opposite sides in football
match and the Defendant made a foul tackle which resulting serious injury. The Court held that the Defendant was not liable as his conduct is merely an
accident even though he may committed an offence under the laws of Association Football. The Court further states that the football is a game
necessarily involving strong physical contact between opposing players, that it is a game sometimes played at a very fast speed and the players will have
to take very, very quick decisions as to how to react to the situation immediately confronting them.

• Yaakub Foong Abdullah v Lai Mun Keong [1986] CLJ Rep 790, HC: The plaintiff was on his motorcycle when he was run into by the Defendant. The
Plaintiff is entitled to claim various losses including medical treatment at the private hospital.

• Draper v Hodder [1972] 2 QB 556, UK CA: The Plaintiff suffers various injuries as result of a pack of Jack Russell dogs. The Defendant argued that the was
no gate or fence between their respective premises and the defendant's dogs frequently went on to the plaintiff's premises and scavenged among the
dustbins there while the infant plaintiff was at play without any mishap. However, the Court held that the Defendant was liable as the owner or keeper of
an animal, was under a duty in negligence not to put or permit the animal to be placed in such a position where he could reasonably foresee that the
animal might cause damage.

• Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng [1993] 2 MLJ 234, SC: The Plaintiff was badly injured when he fell down the shaft of a lift at
the Pekeliling Flats which together with the lifts inside them were owned by the Dewan Bandaraya, Kuala Lumpur of which the defendant was its Datuk
Bandar. There was no warning sign of any sort or any guard or barricade put up then at the lift door about the lift being out of order. It was held that the
Defendant is liable for negligence as the Defendant owned a duty not to expose the Plaintiff to hidden perils, and to warn Plaintiff of existing traps or
concealed danger.
 DUTY OF CARE
Application duty of care

b) Duty not to cause damage to the property / economic loss

• Abdul Hamid v Tan Chu Kim [1969] 1 LNS 3: The Plaintiffs’ motorcycle was knocked down by a car driven by the Defendant. It was held that the Defendant is entitled to claim for
damages for repairing the motorcycle even though the Plaintiff failed to produce the mechanic who repair the motorcycle.

• Nitrigin Eireann Teoranta v Inco Alloys Ltd [1992] 1 WLR 498, UK HC: The Defendant had supplied steel alloy tubing for the Plaintiff’s chemical plant. An allegedly defective pipe was
supplied in summer 1981. In 1983, the Plaintiffs discovered that it was damaged by cracking and they were unable to find the cause but repaired the pipe. Later, the pipe burst and
there was an explosion which cause damage to the structure of plant around the pipe. It was held that the Defendant can liable for negligence.

c) Pure economic loss

• Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1972] 3 All ER 557, CA: negligent damage to an electric mains cable by contractors interrupted a ‘melt’ of metal at the
Plaintiff’s nearby factory. There were three claims, the first being that, because the plaintiff had to pour molten metal out of its furnace to prevent the metal solidifying and damaging
the furnace, the metal depreciated in value by £368; secondly they lost a profit from the sale of the metal from that melt of £400. Thirdly, during those 14 ½ hours, when the power was
cut off, the Plaintiffs would have been able to put four more melts through the furnace; and, by being unable to do so, they lost a profit of £1,767. The Defendants did not dispute that
they were liable for the £368 physical damages and the £400 loss of profit on the first melt, because that was truly consequential on the physical damages. But the Defendants denied
that they were liable for the £1,767 for the other four melts. The Court held that Plaintiffs should recover for the physical damage to the one melt (£368), and the loss of profit on that
melt consequent thereon (£400) but not for the loss of profit on the four melts (£1,767) because that was economic loss independent of the physical damage.

• Junior books Ltd v Veitchi Co Ltd [1982] 3 WLR 477, HL: the Plaintiff engaged contractors to build a factory at Grangemouth. The Defendant was a specialist company engaged by the
main contractors to lay composition flooring in the factory. Plaintiff claims that the Defendant was negligent in laying the floor with the result that it was defective and had to be
replaced. There was no contractual relationship between the Plaintiff and Defendant and the Plaintiff claimed damages in negligence against Defendant, the damages consisting
mainly of the direct and indirect cost of replacing the floor. It was held that the Defendant were liable including pure economy loss as the Court states that where the relationship
between the parties was sufficiently close, the scope of the duty of care in delict or tort owed by a person doing work was not limited to a duty to avoid causing foreseeable harm to
persons or property other than the subject matter of the work by negligent acts or omissions, but extended to a duty to avoid causing pure economic loss consequential on defects in
the work and to avoid defects in the work itself.
 DUTY OF CARE
Application duty of care

d) Professional or contractual obligation

• Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012, UK CA: at the same time as she was having an abortion, the
Plaintiff a mother of three normal children was sterilized to prevent further pregnancies. The sterilization was performed negligently and she become
pregnant again, a fact that she did not discover until she was some 20 weeks into the pregnancy. As she did not want any more operations she decided
against another abortion and she gave birth to a child which congenitally abnormal. She sued the Hospital and surgeons who had operated on her for
sterilization. The Court held that the Plaintiff is entitled to claim any reasonably foreseeable financial loss caused by unexpected pregnancy including
maintenance of the child.

• Sri Alam Sdn Bhd v Tetuan Radzuan Ibrahim & Co (sued as a firm) [2010] 1 MLJ 284, HC: advocates and solicitor in Malaysia can be liable for negligence in
the same way like other professional in this country. However, in this case, the Court held that the Defendant was not liable for a negligence [note: Sect
117(4) of LPA 1974]

e) Statutory duty

• Siti Rohani Mohd Shah v Hj Zainal Hj Saifiee [2001] 1 CLJ 498, HC: it was held that riding or driving without a valid license per se is not negligent. The law
does not sanction a person without a valid license to be riding or driving a vehicle on the road, but that person is not fair game with no rights. She is still
entitled to the same duty of care expected of to be accorded to all on and adjacent to the road.

• Wong Li Fatt William (An Infant) v Haidawati Bte Bolhen [1994] 2 MLJ 497, HC: failure to comply with Highway Code (subsidiary legislation under Sect 68
of Road Transport Act 1987) will render the driver to be liable for negligene as she did not automatically reduces her speed when entering a build-up area,
when approaching a school or a bus with children alighting or boarding, on narrow winding roads, approaching children who are playing, approaching a
bend, brow of hill, or any other obstruction that limits his view.
 BREACH OF DUTY
General rule
• Where a person owes a plaintiff a duty of care, that person may only be liable in respect of his acts in the tort of negligence if
he is in breach of that duty. Breach refers to non-performance or non-compliance with a certain standard of conduct,
commonly referred to as the standard of care.
• Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333, UK CA: If the defendant has not acted below that standard, he is
not in breach of his duty and could not therefore be liable in negligence. In determining whether a party is negligent, the
standard of reasonable care is that which is reasonably to be demanded in the circumstances
• Glasgow Corp v Muir [1943] AC 448, HL: The degree of care required in any given factual matrix is a question of fact and must
necessarily be dependent on the circumstances of the case; for this purpose, there is no absolute standard, and it may be said
generally that the degree of care required would vary directly with the risk involved.
• Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd [2018] 5 MLJ 561, FC: The magnitude of risk is a matter that
ultimately informs how a court is to determine whether the standard of care has been met.
• Tomlinson v Congleton Borough Council [2004] 1 AC 46, HL: The question of what amounts to "such care as in all the
circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the
likelihood that someone may be injured and the seriousness of the injury which may occur, but also the Defendant’s conduct
in terms of practicality and sufficiency.
 BREACH OF DUTY
General rule

• Practicality and sufficiency of Defendant’s conduct: whether the precautions take by the Defendant is reasonably justified.

• Watt v Hertfordshire County Council [1954] 2 All ER 368, UK CA: the Plaintiff was a fireman who answered an emergency call for a woman who was
trapped under a lorry. The fire-engine which usually carried the jack was not available and so the jack was brought onto a normal fire-engine. On the way
to the scene of the accident with a number of firemen employed by the Defendants and the jack, the driver of the lorry had to brake suddenly and the
jack moved inside the lorry and injured one of the firemen / Plaintiff. It was held that the Defendants were not liable as the risk taken was such as would
normally be undertaken by a member of the fire service and was not unduly great in relation to the end to be achieved.

• Ward v London County Council [1938] 2 All ER 341, UK HC: on its way to a fire, a fire engine disobeyed a red traffic light. A car with lights in its favor
collied with it. The occupant of the car were injured. It was held that the occupants of car were entitled to damages as the Court noted that the
Defendants did not have privilege to charge into other vehicle if the said vehicle did not gave a passage.

• Ketua Polis Daerah Shah Alam v Nor Azura bt Amzah (administrator for the estate of Aminulrashid bin Amzah, deceased) [2018] 5 MLJ 805, CA decision
affirmed by FC: the Court held that the government was vicariously liable for death of Aminulrasyid bin Amzah was shot dead by police personnel as the
deceased was driving his sister’s car along Jalan Tarian 11/2 at the material time when he suffered the fatal gunshot wound allegedly inflicted upon him by
the police officer.

• Mahmood v Govt of Malaysia [1974] 1 MLJ 103: a police officer was alleged to have unlawfully and negligently shot the Plaintiff. The Court held that the
police was not negligent in shooting the Plaintiff as the police had reasonable suspicion that an offence was being commited at the particular scene of
accident. The shot were justified as the police officer heard scream while on patrol duty and the shooting for the purpose of effecting the arrest of the
Plaintiff as well as to prevent him from escaping.
 BREACH OF DUTY
a) Ordinary situation

• Test in Bolton v Stone [1951] AC 850, HL: An ordinary, careful man does not take precautions against every foreseeable risk. He or she of
course foresee the possibility of many risks but life would be almost impossible if he or she were attempt to take precautions against every risk
which he or she can foresee. He or she takes precautions against risks which are reasonably likely to happen.

• Bolton v Stone [1951] AC 850, HL: the Plaintiff was standing on the highway when she was hit by cricket ball which had been struck from the
Defendant’s adjoining cricket ground. The evidence show that in the many years that cricket had been played on the ground very occasionally
had the ball hit so far. The ball had travelled over 100 yards after being hit and had cleared a seven foot boundary fence. Thus, the Court held
that the Defendant was not liable in failing to take step to guard against such a small risk as such an injury would not have anticipated by a
reasonable man.

• Hilder v Associated Portland Cement Manufacturer Ltd [1961] 1 WLR 1434, QB: the Plaintiff who was riding his motorcycle was killed when a
football went onto the highway and caused him to have an accident. The only barrier between the goal and the highway was a wall three feet
two inches high on the open grassland side and four feet high on the pavement side. The occupier of the land were found liable for allowing
children to play football on his land.

• Miller v Jackson [1977] QB 966, UK CA: cricket balls were hit out of the fence of the cricket field about eight to nine times per season and the
Plaintiff property had been damaged several times. Even though there was a high fence surrounding the field, there was only a short distance
between the fence and the pitch, the place where the ball was hit. The Court held that the Defendant was liable as the risk of injury was high
and precautions that been adopted were insufficient.
 BREACH OF DUTY
b) In school situation

• Govt of Malaysia v Jumat Mohamed [1977] 2 MLJ 103, FC: a pupil in school pricked the Plaintiff’s thigh with a pin which produced a shock causing the
latter to turn round and his eye came in contact with the sharp end of a pencil which the pupil was holding. The eye had to be removed subsequently.
The Plaintiff brought an action for a negligence. It was held that the teacher is not liable for negligence and therefore, the govt is not vicariously liable as
the said teacher had provided sufficient supervision but could not prevent the injury from being inflicted because of the stupidity of a pupil, whose
exuberant behavior was unknown to the teacher.

• Mohamed Raihan Ibrahim v Govt of Malaysia [1981] 2 MLJ 27, FC: the Plaintiff sustained injuries when he was accidentally struck on the head by a
changkol wielded by a fellow pupil in the course of a practical gardening class. The Plaintiff sued Fed Govt as a employer for vicarious liable for the
teacher’s negligence. It was held that the teacher was neglect on her duty which the govt vicariously liable as she failed to take all reasonable and proper
steps to prevent the Plaintiff under their care from sustaining the injury and moreover she did not check the condition of the garden tools nor provide a
safe system of holding the garden class and had not given sufficient warning as to their use nor had she taken steps to see that the pupils were positioned
within such distance between them as to avoid injuries from being inflicted.

• Master Brisbane ak Itang v Robinson Lee (c/o Sekolah Kebangsaan (Cina) Sungai Menyan) [2013] 5 MLJ 604, HC: The plaintiff had fever while attending
boarding school and was subsequently taken by his teacher to the clinic and was then sent back home in the kampung. His conditions deteriorated and
he was diagnosed to have been infected with the Japanese Encephalitis ('JE') virus. As a result of the infection, the Plaintiff suffered brain damage, became
wheelchair bound and was unable to take care of himself. The Plaintiff contended that a pig farm should never be located within a 2km radius of a school
as pigs were the natural hosts of the JE virus which was transmitted to human beings via the culex mosquitoes from infected pigs. However, the Court
held that the teacher was not liable as while there is a duty to ensure a clean, safe and conducive environment for them to study and to stay at the school,
it being a boarding school There was no evidence that they did not do so. Furthermore, there is no duty imposed on the school to relocate or to close the
pig farm situated near to the school.
 BREACH OF DUTY
c) Workplace situation
• Aikbee Sawmill Ltd v Mun Kum Chow [1971] 1 MLJ 81, FC: the Plaintiff had claimed damages for personal injuries caused to him in the
course of his employment with the Defendants as some of the planks which had been stacked on the lorry toppled over and struck
the Plaintiff. Therefore, the Plaintiff sued Defendant for failure to provide a safe system of work. However, the Defendants argued
that the Plaintiff did not use cross-bars in loading the planks but they did not been instructed to do so. It was held that the
Defendants were liable for negligence as there is a duty on the part of the Defendant to provide a reasonably safe system so as to
protect the workmen from unnecessary risk and to give adequate instructions.
• Paris v Stepney Borough Council [1951] AC 367, HL: the Plaintiff who had lost the sight in one eye was employed by the Defendants
who knew of his condition. One day when he was repairing a vehicle, he hit a bolt with a hammer to release it. The impact caused a
piece of metal to fly off and enter his other eye, causing total loss of sight. He alleged his employers had been negligent in failing to
supply him with protective googles. It was held that the Plaintiff’s claim succeed as ordinary prudent employer would take that
precaution.
• Latimer v AEC Ltd [1953] AC 643, HL: During an unusually heavy rainstorm, the floors of a Plaintiffs’ factory were flooded and the
mixture of water and oil caused a part of floor of factory to be very slippery. The sawdust was placed over the slippery parts but not
all of slippery area was fully covered and the Plaintiff employee slipped and injured his ankle. The Plaintiff contended that the
Defendant should have shut down the factory down. However, the Court held that the Defendant were not liable as the degree of
risk was too small to justify for shutting down the factory. Furthermore, the Defendant had attempt to minimize the risk by placing
sawdust.
 BREACH OF DUTY
d) Professional duty

• Test for professional duty: Greaves & Co (Conractors) Ltd v Baynham, Meikle and Partners [1975] 1 WLR 1095, UK CA: standard of care: to
perform certain conduct or omission in accordance with standard of profession at that time. The law does not usually imply a warranty that he
will achieve the desired result, but only a term that he will use reasonable care and skill. The surgeon does not warrant that he will cure the
patient. Nor does the solicitor warrant that he will win the case. But when a dentist agrees to make a set of false teeth for a patient, there is an
implied warranty that they will fit his gums.

• PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681, HC: an architect in a building contract has a duty to supervise the building
works to ensure that they are being carried out in conformity with the contractual specifications.

• Neogh Soo Oh v G Rethinasamy [1984] 1 MLJ 126: The Defendant, an advocate and solicitor practicing at Butterworth was sued by the plaintiffs
for negligence and breach of contractual duty as their solicitor. In this case, the plaintiffs had engaged the defendant to act for them in the
purchase of land from one Haji Hassan at $45,000.00 on 6.8.1976. Later the land was compulsory acquired by the Government at lower price at
$14,000.00 in 1977. Therefore, the Plaintiff claimed that the Defendant had failed to advise properly as the evidence that the government had
already signaling their intention to acquire the said land through Gazette Notification on 1.2.1973. Furthermore, the Defendant had failed to
make a search at or enquiry with the Collector of Land Revenue. It was held that had failed in his duty to use reasonable care and skill in giving
his advice and taking such action as the facts of this particular case demanded of a normally competent and careful practitioner.

• Hanafiah, Raslan, Mohamed & Partners v Weng Lok Mining Co Ltd [1977] 1 MLJ 248: the Defendants as accountants were liable for negligence
for failure to exercise reasonable care and uphold the standard of duty required of a professional accountant in preparing and auditing the
financial account of Plaintiff.
 BREACH OF DUTY
e) Medical negligence

• Tests for medical negligence:

i. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, UK HC: medical man negligence means failure to act in accordance with
the standards of reasonably competent medical men at that time with respect to method that been used for diagnosis and treatment.
Therefore, the doctor is not liable as long as there are genuine differences of professional opinion in respect of diagnosis and treatment.

ii. Rogers v Whitaker (1992) 175 CLR 479, AUS HC: whether a patient has been properly advised of the risks associated with a proposed
treatment.

• Roe v Ministry of Health [1954] 2 WLR 915, UK CA: the Plaintiff underwent a minor operation in hospital. He was given an anesthetic injected
into the spine. The anesthetic was kept in glass ampoules which were stored in a jar containing phenol to prevent infection. Unknown to
anyone, tiny cracks were present in the ampoules and some of the phenol had seeped in and contaminated the anesthetic. This resulted in the
Plaintiff being permanently paralyzed. It was held that the doctor was not negligent in his duty. It is because the micro-cracks were not
foreseeable given the prevailing scientific knowledge of the time as the method of testing of possibility of crack was discovered in 1951 after
the incident took place, 1947.

• Chin Keow v Govt of Malaysia [1967] 2 MLJ 45, PC: an amah was given a penicillin injection at a clinic. She died about an hour later. The Court
held the doctor had been negligent as it was expressly written on the patient’s card that she was allergic to penicillin.
 BREACH OF DUTY
e) Medical negligence

• Dr Kok Choong Seng v Soo Cheng Lin [2018] 1 MLJ 685, FC: Soo Cheng Lin had consulted Dr Kok Choong Seng, a consultant orthopedic
surgeon, about a lump in his left forearm. The doctor had advised Soo to undergo an operation to remove the lump. On 14 September 2004,
the doctor had performed the operation at Sunway Medical Centre Bhd and Soo was discharged on the same day. After the operation Soo
complained of pain and numbness in the area operated upon and was referred by the doctor to a hand and micro surgeon from Pantai Medical
Centre, who diagnosed Soo as having lost 90% of his left median nerve and thus conducted a microscopic reconstruction on Soo’s left median
nerve. Soo claimed that the pain, injuries and suffering he suffered and the additional costs of another surgery to the same area arose from the
negligence of the doctor and the hospital. The Court held that only the doctor was liable for negligence as the said doctor was an
independent contractor of the hospital in conducting the operation and there is no positive duty by the hospital which guarantees to protect
the Plaintiff from harm. Furthermore, the duty of any medical hospital was extent either in its selection of practitioners, provision of facilities,
or system of work.

• Dr Hari Krishnan v Megat Noor Ishak bin Megat Ibrahim [2018] 3 MLJ 281, FC: The plaintiff’s claim was brought against the 1st Defendant,
ophthalmologist Dr Hari Krishnan, the 2nd Defendant, anesthetist Dr Mohamed Namazie, & the 3rd Defendant, Tun Hussein Onn National Eye
Hospital for the injuries and loss of vision in his right eye were caused by the negligence of all three Defendants. It was held all three of them
were liable for negligence as 1st and 2nd Defendants failed to act in accordance with a practice accepted as proper and responsible by a
responsible body of medical practitioners when they subjected the Plaintiff to an unnecessary operation, which ultimately caused the plaintiff
to lose his eyesight. Furthermore, neither Dr Hari nor Dr Namazie had warned the plaintiff of the risks of bucking and blindness at any material
time. At the same time, the 3rd Defendants was liable as there was a positive duty to the Plaintiff to ensure that reasonable care was taken in. it
is because Dr Namazie is only doctor in charge for anesthetic services while the resident consultant anesthetist was on maternity leave.
Therefore, it is inferred that the Hospital had guaranteed to protect the Plaintiff from harm.
 BREACH OF DUTY
f) Vehicle situation

• Hamzah v Wan Hanafi Bin Wan Ali [1975] 1 MLJ 203, FC: A passenger jumped from the train while still in motion. It was held that Defendants as
Malayan Railway Administration and its officers were not liable as there is precaution took by them as the door of railway was closed.

• Barkway v South Wales Transport [1950] 1 All ER 392, HL: The tire of bus was exploded because there is a facture on the tire which caused a
passenger killed. The Defendants argued that the bus inspects regularly which took place twice a week. However, the Court held that the
Defendants were liable as the evidence showed that the Defendants had not taken all the steps they should have taken to protect passengers
because they had not instructed their drivers to report heavy blows to tires likely to cause impact fractures prior to the accident.

• KR Taxi Service Ltd v Zaharah [1969] 1 MLJ 49, FC: the duty of a driver is only to exercise reasonable care; he is not under a duty to be perfect in
the sense of being able to anticipate other drivers acting in a negligent or irresponsible manner.

• Nettleship v Weston [1971] 2 QB 691, UK CA: the Plaintiff took the Defendant for driving lesson in a car belonging to the Defendant’s husband.
The Plaintiff had first checked to satisfy himself that he would be covered by the Defendant’s insurance in the event of accident. During one of
lessons, an accident occurred when the Defendant having taken a corner failed to straighten the car up and crashed into a lamp post despite
that Plaintiff’s own attempts to stop the car. The Plaintiff was injured and claimed damages against the Defendant. The Court held that the
Defendant was liable as the standard of care which the law expects of a learner driver is the same as that of any reasonably competent driver.

• Sutherland v Glasgow Corporation 1951 SC (HL) 1, HL: the primary duty of driver is to avoid endangering human beings life whether
pedestrians or passengers. The secondary duty is to his passengers and he is not justified in taking action to avoid a dog or other small animal
if he is subjecting his passengers to the risk of injury.
 BREACH OF DUTY
g) Utilities
• Jaswant Singh v Central Electricity Board [1967] 1 MLJ 272: The Plaintiff sued the Defendants for damages arising out of the death of five buffaloes and one
dog belonging to him as a result of their being electrocuted by coming into contact with a telephone wire; the wire, which had snapped on 30 November
1962, was lying on the ground and resting on the overhead electricity lines belonging to the Defendants, and remained so resting till the day of the
incident on 3 December 1962. The Court held that the Defendants were liable as the Court states that ‘when electricity is carried overhead by wires or
cables great care must be taken, in addition to any precautions required by statute, to see that it is not likely to become a source of danger’:
• Lembaga Letrik Negara v Ramakrishnan [1982] 2 MLJ 128, FC: the Plaintiff was a 10-year old child trespasser who had climbed an electric pole which was
under control of the Defendant in order to free a trapped bird. He was electrocuted and thrown to the ground and suffered extensive injuries. The pole
was situated immediately adjoining a public footpath which the Defendants knew to be well used by members of the public. They however did not put
any anti climbing devices such as warning sign, barbed wires or spikes despite the potential danger and its proximity to the footpath. The Court held that
the Defendants were liable the standard of care is to ensure that it is not likely to become a source of danger as if uncontained and or uncontrolled,
electricity could be deadly to life or property.
• Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd [2018] 5 MLJ 561, FC: the Defendants were liable as their conduct had caused power failure or
disruption which contributory damage to the Plaintiffs’ property.
• Haley v London Electricity Board [1964] 3 All ER 185, HL: the servant of the Defendants had excavated a trench in a highway under the statutory authority.
The workers had then placed some notice boards and a punner on the pavement to serve ass a warning to pedestrian but the Plaintiff who was blind
tripped over this punner and injured his head and become deaf as a consequences. The Court held that the Defendant were liable as the duty of care
owed by persons excavating a highway, in guarding the excavation made by them, extended to all persons whose use of the highway was reasonably
likely and thus reasonably foreseeable, not excluding the blind or infirm, and the use of a city pavement such as this by a blind person was reasonably
foreseeable. In this case, the Defendant gave no instructions to their men how they were to guard this excavation and gave them no apparatus for that
purpose except two notice boards. Furthermore, such damage was reasonably foreseeable as it is ordinary situation to meet blind people walking alone
with their white sticks on city pavements.
 BREACH OF DUTY
h) Liability of occupiers

• Wheat v Lacon & Co Ltd [1966] 1 All ER 582, HL: An occupier is someone who has the immediate supervision and control and the power of
permitting or prohibiting the entry of other person. At common law, an occupier may be liable in respect of an injury to another person in the
following situations: (1) where that person is on the premises; and (2) where that person is not on the premises but is injured by the occupier,
for example, where such person is on the neighboring land. The liability of occupiers will depend on the character of the person injured whilst
on the premises, namely: (a) those who enter upon a contractual right (b) invitees with whom the occupier has some common interest; (c) in
respect of licensees who have either the express or implied permission to enter from the occupier; & (d) trespassers.

• Haseldine v CA Daw & Son Ltd [1941] 2 KB 343, UK CA: The case involved a hydraulic lift which was used to access the upper floor flats of an
apartment block which were rented out to tenants. The landlord also made a contract with a firm of engineers to adjust, clean and lubricate
the machinery of the lift once every month, to repack the glands when needed, and to report to him if any repairs to the lift were necessary.
The lift was thirty-five years old and to the landlord's knowledge had never been overhauled. The engineers told the landlord that the rams of
the lift were badly worn and scored and ought to be replaced by new rams, but they did not consider, and, therefore, did not tell the owner,
that the lift was dangerous to use. On June 18, 1940, an employee of the engineers repacked one of the glands and he negligently failed to
replace it properly, thereby causing the gland to fracture when the lift was worked. Later, Plaintiff, who wished to visit one of the tenants of
the flats on business used the lift to reach the tenant's flat, when, owing to the fracture of the gland, the lift fell to the bottom of the well and
the Plaintiff was injured. It was held that the engineer were liable but the landlord as an occupier were not liable for negligence as she had
fulfilled that obligation by employing a competent firm of engineers to make periodical inspections of the lift, to adjust it and to report on it.
h) Liability of occupiers
BREACH OF DUTY
• British Railways Board v Herrington [1972] AC 877, HL: a six year old boy received bad burns after he trespassed on the Defendant's land and came into
contact with electrified rail. Access was obtained through a gap created in the fence which was used as a short cut across the railway line. The Defendants
knew that some children had done this before but no specific steps were taken to stop this from continuing. It was held that Defendants were in breach
of their duty to the Plaintiff who was entitled to damages. The duty is then limited to taking reasonable steps to enable the trespasser to avoid the danger;
and the degree of likelihood required to give rise to a duty is one founded on common humanity.

• Shanta a/p Manickam v Teik Joo Chan Sdn Bhd [2015] 11 MLJ 721, HC: Letchumanan (‘the deceased’) was employed as a lorry driver by Teik Joo Chan Sdn
Bhd. The deceased and his lorry attendant Mogan a/l Ramasamy were instructed by his employer to go to the Defendants’ (Westport Malaysia Sdn Bhd)
premises located in Port Klang to collect a shipment of corn. Whilst the deceased was fixing the chain to the exterior of his lorry, he was knocked down
by an excavator driven by one Tan Chun Huat. The Deceased was rushed to hospital but was pronounced dead on arrival the Plaintiff, as the lawful wife
of the deceased commenced proceedings for damages under the Civil Law Act 1956 against Defendants. The Defendants delivered its defense
acknowledging that that the accident had taken place but denied it was liable for the accident. It was alleged, inter alia, that it did not own and had no
control of the site where the accident took place as the same had been leased to See Hoy Chan Agencies Sdn Bhd and that the excavator driver was not
their employee. However, the Defendant controls the entry of premises. It was held that Defendants were liable as the Court states that there might be
more than one occupier of property, at the same time, for the purposes of occupier’s liability, each of whom was under a duty of care to visitors.

• Lembaga Kemajuan Tanah Persekutuan v Mariam [1984] 1 MLJ 283, FC: the Court held that the Defendant statutory authority FELDA remained as the
occupier even when possession of a piece of land was given to a contractor as the facts indicated that the statutory authority still retained control over
the premises. Here the kongsi-house which collapsed on the deceased was built for common benefit of Defendant, contractor and laborer and the
Defendant did not cease to be possession and continued to be occupier of the site.
 DAMAGE
General rule

• Plaintiff must suffered loss in order to bring an action of negligence against the Defendant.

• Damage to the Plaintiff encompassed two principles (a) causation of facts: the damage suffered by the Plaintiff is caused by
the Defendant & (b) remoteness: the damage suffered by the Plaintiff must not too remote as whether it is reasonable to
establish that the Defendant’s conduct or omission will resulting to Plaintiff’s loss.

a) Causation of facts: several tests:

i. “But for” test: it not for the defendant’s negligent act, the injury would not have occurred

• Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428, UK HC: the Plaintiff’s husband went to
the casualty department of the Defendants’ hospital complaining stomach pain and vomiting after drinking tea. The nurse
reported their complaints by telephone to the duty medical casualty officer but he did not come to examine the husband and
sent a message that he should go home to bed and call his own doctor. The Plaintiff’s husband died shortly after arsenic
poisoning. The Court held that Defendants were not liable as while there is a duty to exercise the skill and care to be
expected of a nurse and medical casualty officer acting reasonably notwithstanding that he had not been treated and
received into the hospital wards as the nurse ran the casualty department to which the deceased presented himself,
nevertheless he must have died of the poisoning even if he had been admitted to the wards five hours before his death.
 DAMAGE
• Lechemanavasagar a/l S Karuppiah v Dr Thomas Yau Pak Chenk [2008] 1 MLJ 115, HC: the Plaintiff had accidentally
swallowed a fishbone. He saw the Defendant, an ENT specialist. An operation was performed to remove the fishbone.
He was supposedly put on 'nil orally' after the operation but was given tablets orally and a drink of Milo by the
nursing staff of the hospital. The Plaintiff subsequently had 'esophageal perforation' on the upper of his esophagus;
his lung became infected and he suffered a serious complication that led to his right lung pleural thorax cavity almost
collapsing. In holding the Defendants to be in breach of the standard code of practice in giving the plaintiff Milo, the
Court went on to consider whether the Plaintiff had established by evidence that the oral tablets and the Milo are the
probable or material cause of the lung infection suffered by the Plaintiff i.e. the causation effect of such breaches. It
was held that there was no evidence of causal link between giving of the tablets or the Milo and the infection suffered
by the Plaintiff, therefore, the Defendant was not liable for negligence.

• Hunter v Canary Wharf Ltd [1997] AC 655, HL: the case arose from the construction of a tower block at Canary Wharf
in East London. An action concerning the effect of construction work brought by local resident and one of issues that
arose from the case was whether excessive dust could be sufficient to constitute damage to property for the purpose
of negligence. The Court held that mere deposit of dust was not in itself sufficient because the dust was an inevitable
incident of urban life.
 DAMAGE
General rule

ii. Multiply cause: situations occurred when there are two or more concurrent breaches

• Cook v Lewis [1952] 1 DLR 1, CA SC: out shotting, two man fired their gun at almost the same time, but at different birds. Due
to negligence, the Plaintiff had been struck by some of their bird shot but it was impossible to say from which gun it had
come. It was held that both of them are liable as joint tortfeasors.

• Bonnington Castings Ltd v Wardlaw [1956] AC 613, HL: the Plaintiff contracted pneumoconiosis due to inhaling silica dust at
his place of work. The dust came from a pneumatic machine which did not give rise to any breach on the part of Defendants.
Some of the dust also came from the grinding machine was at fault for not ensuring that the dust absorber machine was
functioning properly. The Court held that Defendants were liable as the Plaintiff was not required to prove that the dust was
sole or main of his illness. He only had to prove that the dust from the grinding machine was an important cause of his
disease.

• Performance Cars Ltd v Abraham [1963] 3 WLR 749, UK CA: the Plaintiffs’ car was damaged in an accident and the respraying
of the lower part of its body was necessary as a result. Two weeks later, and before the car had been resprayed, it was
involved in a collision with the Defendant’s car. The Court held that the Defendant was not liable for the cost of respraying as
he had damaged a car which was already damaged and therefore, his negligence did not cause the damage.
 DAMAGE
The presumption of res ipsa loquitur

• Sections 101 & 103 of Evidence Act 1950: legal burden lies on the person who asserts such fact before the court. In case of tort cases, the burden of proof of making
claim lies on the Plaintiff.

• The problem is fact which leads a tortious liability is beyond to the Plaintiff’s knowledge. Therefore, the presumption of res ipsa loquitur / “the thing speak for itself”
can be invoked under the principle of English common law and Section 106 of Evidence Act 1950 as (a) those fact is within Defendant’s knowledge or control, (b) the
Defendant had breached standard of care and (c) cause of accident is beyond the Plaintiff’s knowledge.

• Teoh Guat Looi v Ng Hong Guan[1998] 4 MLJ 525, CA: res ipsa loquitur as in essence no more than a common sense approach to the effect of the evidence in certain
circumstances. It means that a plaintiff prima facie establishes negligence where: (i) it is not possible for him to prove precisely how the accident happened, but (ii) on
the evidence as it stands, he manages to show that the accident could not have happened without negligence on the part of the defendant.

• Cassidy v Ministry of Health [1951] 1 All ER 574, UK CA: The Plaintiff entered a hospital for an operation on his left hand. At the end of the treatment it was found that
his hand had been rendered useless. The Defendant denied the liability and demanded the Plaintiff to prove the injury is caused by the Defendant’s treatment. The
Court held that there is no requirement for the Plaintiff to prove the cause of injury as the condition of Plaintiff’s hand was very bad after 14 days from the date of
Plaintiff's hand was finally released from splint and the Defendant method in handling the Plaintiff’s treatment is breach of standard of care that requires in the
medical treatment.

• Glass v Cambridge Health Authority [1995] 6 Med LR 91, UK CA: a healthy 35 year old underwent an exploratory laparotomy, during which the oximeter alarm went off.
It was considered to be a false alarm and switched off. Later, the patient went into cardiac arrest during surgery and suffered brain damage. It was held that the res
ipsa loquitur applied, and that the Defendant had not discharged the reversed burden.

• David Chelliah v Monorail Malaysia Technology Sdn Bhd [2009] 4 MLJ 253, HC: the Plaintiff was been hit by wheel of monorail. The Plaintiff applied for res ipsa
loquitur and argued that there is no requirement for the Plaintiff to prove how the wheel come off and hit the Plaintiff. It was held that the Defendants were liable for
negligence as the safety wheel on the train was under the sole control of Defendants.
 DAMAGE
b) Remoteness of damage: several tests

• Direct consequence test: the Defendant can be liable for any types of injuries suffered by the Plaintiff as long as the chain of causation can be
tracked back to the Plaintiff’s tortious conduct. The chain of causation can be based on speculation or conjecture.

Re Polemis [1921] 3 KB 560, UK CA: the case concerned the renting of a ship, an arrangement known as a charter. The people renting of a ship
called the charterer had loaded it with tins of petrol and during the voyage these leaked releasing large amounts of petrol vapor into the hold.
The ship docked at Casablanca and was unloaded. The workers unloading it had positioned some heavy planks as a platform over the hold and as
a result of their negligence one of the planks fell into the hold. It caused a spark which ignited the petrol vapor, and ultimately the ship was
completely burnt, causing the owner a loss of almost £200, 000. They sued the charterer. It was held that the charterer were liable for any
consequence that was a direct result of their breach of duty.

The Oropesa [1943] P 32, UK CA: due to negligence of Oropesa, the ship collied with the Manchester Regiment and caused ot serious damage.
Most of the crew of the latter took the lifeboat and the captain decided to go to the Oropesa in one of them in the hope of obtaining assistance of
various kind. This lifeboat capsized and nine of the crew lost their lives. It was held that the owners of Oropesa were liable in respect of this loss
of life as there had been no break in the chain of causation.

Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807 In July, 1955, Mr. Pigney was injured in an accident which occurred in the course of
his employment by the Defendants. After the accident, Mr. Pigney suffered from anxiety neurosis and depression caused by it. These so sapped
his powers of resistance that in January, 1957, he hanged himself. As a result, Mr. Pigney’s widow brought an action and claim loss from accident
until the cause of death. It was held that the Pigney’s widow is entitled to claim damages from injury until death even though medical evidence
suggested that Mr. Pigney was not insane before he committed suicide.
 DAMAGE
General rule

• Reasonable foresight test: the Defendant will only liable if it is reasonably foresee for any types of injuries suffered by the Plaintiff. Reasonable foreseeable must be
based on evidence and cannot be merely speculative or conjecture. However, in case of there are consequential personal injuries: English law provides that the
liability of Defendant is depending on various circumstances such as characteristics and constitution of the victim, expert witness or common sense approach
(eggshell skull rule)

The Wagon Mound (No 1) [1961] AC 388, PC: the incident which gave rise to the ligation was an accident which occurred in Sydney Harbor, Australia. The Defendants
were the owners of a ship which was loading oil there and owing to the negligence of their employees, some of it leaked into the water and spread forming a thin film on
the surface. Within hours, the oil had spread to a neighboring wharf owned by the Plaintiff, where another ship was being repaired by welders. It caused some damage to
the slipway but then a few days later, further and much more serious damage was caused when the oil ignited by sparks from the welding operation. The Court found in
favor of the Defendants, agreeing with the expert witness who provided evidence that the defendant, in spite of the furnace oil being innately flammable, could not
reasonably expect it to burn on water. The Defendants can be liable in respect to damage to the slipway and not for the fire damage.

Smith v Leech Brain [1961] 3 All ER 1159: due to Defendant’s negligence the Plaintiff’s husband was burned on the lip by a piece of molten metal. The Plaintiff in fact had a
tendency to contract cancer and the burn caused a cancerous growth from which he died three years later. The Defendant was liable for the cause of death as it is
common sense that the injury will lead to the growth of cancer.

Robinson v The Post Office [1974] 1 WLR 1176, UK CA: The plaintiff, a technician employed by the Post Office, slipped as he was descending a ladder from one of the Post
Office's tower wagons. The slipping was caused by oil on the ladder due to leakage of a pump. The plaintiff sustained a wound to his left shin. At the hospital Plaintiff was
given an tetanus injection by doctor without first being tested for allergy. In fact, the Plaintiff was allergic and suffered brain damage. A test would not have revealed the
allergy. He brought an action for damages against the Post Office and the doctor. The Court held that the only Post Office were liable for entire injury from descending
from a ladder to brain damage as it was foreseeable that as a result of their wrongful act, any reasonable person would say that he may requires a medical treatment.
However, the said Doctor was not negligent in deciding to administer tetanus injection, and that, although he was negligent in failing to administer a proper test dose,
such negligence had no causative effect.
 DAMAGE
Page v Smith [1996] AC 155, HL: While driving along the highway the plaintiff was involved in a collision with a car driven by the defendant. The plaintiff suffered no
physical injury but three hours after the accident he felt exhausted and the exhaustion had continued. For 20 years prior to the accident the plaintiff had suffered from a
condition variously described as myalgic encephalomyelitis, chronic fatigue syndrome or post viral fatigue syndrome which manifested itself from time to time with
different degrees of severity. The plaintiff brought an action claiming damages for personal injuries caused by the defendant's negligence in that as a result of the
accident his condition had become chronic and permanent and that it was unlikely that he would be able to take full-time employment again. The Court held that the
Defendant can liable as the mental injury is foreseeable as he is primary victim.

Govt of Malaysia v Jumat Mohamed [1977] 2 MLJ 103, FC: a pupil in school pricked the Plaintiff’s thigh with a pin which produced a shock causing the latter to turn round
and his eye came in contact with the sharp end of a pencil which the pupil was holding. The eye had to be removed subsequently. The Plaintiff brought an action for a
negligence. It was held that the teacher is not liable for negligence and therefore, the govt is not vicariously liable as the said teacher had provided sufficient supervision
but could not prevent the injury from being inflicted because of the stupidity of a pupil, whose exuberant behavior was unknown to the teacher.

Sivakumaran v Yu Pan [1995] 1 MLJ 12, HC: the deceased family sued the Defendant as the driver and owner, respectively, of a lorry which was involved in an accident with
the deceased as the deceased suffered several injuries and nine months later committed suicide by hanging himself. It was held that the Defendant cannot be liable for
death of deceased as it was too remote as there is no evidence that the Plaintiff suffered mental injury as result from accident. Therefore, the Court concluded that the
suicide was not a normal reaction to the accident.

Sukatno v Lee Seng Kee [2009] 3 MLJ 306, CA: On 30 June 1996, while the Plaintiff, an Indonesian working in Malaysia, was walking along Jalan Fair Park, Ipoh a motor van
bearing registration No WR5906 ('the motor van') driven by the defendant collided into him causing him to lose consciousness. The Plaintiff who had sustained injuries to
his back was then warded at the Ipoh General Hospital. The Plaintiff, who found himself paralyzed from the waist downwards as a result of the road accident. The Court
apply Wagon Mound test and held that the injuries sustained by the Plaintiff should have been foreseen by the defendant when the Defendant drove the motor van WR
5906 at a fast speed and collided into the Plaintiff who was walking by the side of the road. Any reasonable man similarly placed in the situation in which the Defendant
was placed when driving the motor van WR 5906 should have foreseen that an accident would occur and that the Plaintiff would sustain those injuries.
That’s all, Thank
you